Gendron v. Pawtucket Mut. Ins. Co.

• Decision Date: 31 December 1979
• Citation: 409 A.2d 656
• Parties: Dolard GENDRON et ux. v. PAWTUCKET MUTUAL INSURANCE COMPANY.
• Court: Maine Supreme Court

Page 656

409 A.2d 656

Dolard GENDRON et ux. v. PAWTUCKET MUTUAL INSURANCE COMPANY.

Supreme Judicial Court of Maine.

Dec. 31, 1979.

Rocheleau & Fournier, Ronald P. Lebel (orally), Paul Fournier, Lewiston, for plaintiffs.

Berman, Berman & Simmons, P. A., Paul F. Marci (orally), Gary Goldberg, Lewiston, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD and NICHOLS, JJ.

NICHOLS, Justice.

It is rare for an appellate court to encounter a case challenging an order entered upon a motion In limine, first, because such a motion is addressed to the discretion of the trial court, and, second, because the order thereon is interlocutory in nature.

This case, however, which comes up on report pursuant to M.R.Civ.P. 72(c), presents such a challenge.

On December 8, 1971, a fire destroyed a service station on Lisbon Street, in Lewiston, Maine, which was owned in fee by the Plaintiffs. That property was covered by a fire insurance policy issued by the Defendant, which policy required the Defendant to indemnify the Plaintiffs "to the extent of the actual cash value of the property at the time of the loss . . . ." At the time of the fire, the property was also the subject of a written agreement between the Plaintiffs and Shell Oil Company, which agreement provided that the service station was to be demolished, and a new service station constructed by Shell Oil Company.

The claim arising out of that fire loss which the Plaintiffs assert against the Defendant insurer is the subject of this action. It was before us on appeal a year ago, when we held that at the time of the loss the Plaintiffs did indeed have an insurable interest in the structure destroyed by that fire. Gendron v. Pawtucket Mut. Ins. Co., Me., 384 A.2d 694, 697-98 (1978). We then expressly reserved judgment on the evidentiary issue now raised before us, Id. at 698, n. 2, and remanded the case to Superior Court (Androscoggin County) for further proceedings.

There the Plaintiffs moved In limine to determine the admissibility on the issue of damages of evidence of their agreement with Shell Oil Company under which the latter would demolish the existing structure and replace it with a new service station. They urged that a ruling In limine "would narrow the issues, allow the parties to better prepare for trial, and could prompt settlement of the litigation."

After a hearing on the motion In limine the Superior Court on October 30, 1978, entered its order that:

(N)o party, attorney or witness mention or refer to, directly or indirectly, within the hearing of the jury, anything concerning Article 4-A of Lease Attachment (Shell Oil Company's contractual obligation to demolish); and that within the hearing of the jury they make no reference to the fact that this motion has been served, filed and granted.

Thereupon the Defendant insurer brings the case here on report, asserting (I) that it was improper for the trial court to rule In limine on such an evidentiary issue and (II) that the order itself was erroneous because the proffered evidence was relevant to the actual cash value of the structure at the time it was destroyed by fire.

On the second issue only we sustain the position of the Defendant insurer.

I

We consider at the outset the question of whether a motion In limine was an appropriate method for resolution by the Superior Court of this evidentiary issue.

A motion In limine ¹ seeks a protective order prohibiting the opposing party counsel and witnesses from offering offending evidence at trial, or even mentioning it at trial, without first having its admissibility determined outside the presence of the jury.

This motion recognizes that the mere asking of an improper question in the hearing of the jury may prove so prejudicial that, notwithstanding an instruction by the court to disregard the offensive matter, the moving party will be denied his right to a fair trial. It is the prejudicial effect of the questions asked or statement made in connection with the offer of evidence, and not so much the prejudicial effect of the evidence itself, that this very practical tool was designed to reach. ²

A motion In limine ³ is appropriate in civil and criminal cases alike. It is particularly addressed to the exclusionary rules. Indeed, the legitimacy of the motion at first was grounded in the inherent discretion of the trial judge to rule on questions of evidence. Today ample authority is found in the Maine Rules of Evidence, notably Rules 102, 103, 104, 402 and 403. ⁴

While this motion resembles the more familiar motion to suppress, there is an important distinction: the motion to suppress is grounded in constitutional right. The motion In limine is addressed to the discretion of the trial judge.

If the trial judge is persuaded that a ruling should be made before the jury is impaneled, his order may take either of two forms: (a) His order may be an "absolute prohibitive" one, directing the opposing party to neither offer the challenged evidence or even to mention it in the presence of the jury; (b) His order may be a "preliminary prohibitive" one, directing the opposing party to neither offer the challenged evidence or even to mention it in the presence of the jury unless and until during trial out of the hearing of the jury he obtains a ruling on the admissibility of the challenged evidence. By that point in the trial it is anticipated the trial judge will have sufficient legal and factual information before him to make a final ruling.

The motion In limine was not recognized at common law. Indeed, our legal tradition did not countenance the determination of evidentiary matters prior to the trial itself. At first this new procedural device encountered opposition in the courts. ⁵ During the last thirty years, however, this motion has become widely recognized as a salutary device to avoid the impact of unfairly prejudicial evidence upon the jury and to save a significant amount of time at the trial.

Scholarly comment has consistently supported even wider use of the motion In limine. ⁶

In the earlier years the motion In limine was employed to prevent an adversary from mentioning the existence of evidence so highly prejudicial to the moving party that a motion to strike or an instruction by the trial judge to disregard the offending matter could not undo the harm that had been done. ⁷ Litigators soon discovered that whenever an advance ruling on admissibility could be obtained, it not only spared them the expense of bringing to the courthouse witnesses and rebuttal witnesses, but it also afforded them a basis for decisions of trial strategy. ⁸ See, e. g., United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968).

Moreover, under modern rules the motion In limine may be of even greater utility as a tool for narrowing the issues and thereby for enhancing the parties' preparation for trial.

M.R.Evid. 103(c) provides:

In Jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

Determination of evidentiary questions in advance of trial heeds the admonition of this rule.

Furthermore, the broad authority conferred upon the Superior Court by M.R.Civ.P. 16(c)(2) to consider at pre-trial conference "(s)uch other matters as may aid in the disposition of the action" reminds litigants of the economy which they may achieve through a motion In limine at that stage. ⁹ The motion should be used selectively; but, so employed, the motion may not only result in the exclusion of evidence of such a character that its unfairly prejudicial nature can be demonstrated positively in advance of trial, but, going beyond the historic pattern, the motion In limine may be utilized in other ways to narrow the issues, shorten the trial and save costs for the litigants. ¹⁰ The fact-finding process may itself be improved through better preparation by counsel and earlier consideration of the crucial issues by the trial judge. ¹¹

In sum, the motion In limine can be a valuable tool for protecting a party's right to a fair trial.

Turning to the case before us, where the challenged evidence was documentary in nature, it was entirely appropriate for the Superior Court to entertain a motion In limine that sought a ruling in advance of trial on the admissibility of that evidence.

II

The second issue raised before us is whether the Superior Court erred in excluding evidence of the agreement for demolition of the service station, which evidence, the Defendant company argues, is highly relevant to the issue of damages.

At the threshold, M.R.Evid. 401 defines "relevant evidence" (as does its counterpart in the federal rules) as:

. . . evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Moving from that general statement to the specific question now before us, we note that the issue is a novel one in this jurisdiction.

Here the Plaintiffs had leased their premises to Shell Oil Company for fifteen years with options to extend the lease for 3 five-year periods. The Oil Company in turn had leased the station back to the Plaintiff, Dolard Gendron, for three years, retaining a right to terminate upon thirty days' notice after the first year. Article 4 A of an attachment to the initial lease by the plaintiffs provided:

As part of the consideration of this lease, Shell promises and agrees, that within one year from the date hereof, it will raze and remove the existing three-bay service station on the premises and construct a new three-bay ranch style service station on the premises. Shell may raze or remove any building or other structure which it has constructed on the premises only if it replaces it with a comparable building or structure.

Thus the...